592 F.

2d 1202

Michael A. BORODINE, Petitioner, Appellant,

v.
Edward DOUZANIS, Superintendent, M. C. I. Concord,
Respondent, Appellee.
No. 78-1405.

United States Court of Appeals,

First Circuit.
Argued Dec. 6, 1978.
Decided Feb. 21, 1979.

Howard J. Alperin, Boston, Mass., with whom Barry M. Haight, Boston,

Mass., was on brief, for petitioner, appellant.
Robert V. Greco, Asst. Atty. Gen., Boston, Mass., with whom Francis X.
Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief,
Crim. Bureau, Boston, Mass., were on brief, for respondent, appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit
Judges.
COFFIN, Chief Judge.

Appellant was convicted of first degree murder in the Middlesex Superior

Court for the Commonwealth of Massachusetts and sentenced to life
imprisonment. After his conviction was upheld on appeal by the Supreme
Judicial Court of Massachusetts, Commonwealth v. Borodine, 371 Mass. 1, 353
N.E.2d 649 (1976), he unsuccessfully petitioned the United States Supreme
Court for a writ of certiorari. He then sought habeas corpus relief in the federal
district court, in which he contended first, that his statements to police officers
at the scene of the crime were obtained in violation of his Miranda rights,
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and
therefore should have been suppressed at trial; and, second, that the
prosecutor's closing argument to the jury so prejudiced him that he was
deprived of a fair trial. The district court rejected the petitioner's contentions
and dismissed the petition. We affirm the judgment below.1. Appellant's

statements to officers at the scene of the crime

2

In the afternoon of May 17, 1974, police were summoned to the parental home
of appellant's girl friend, Joan. Officers Wargin and Peterson found Joan's
sister-in-law, Judith, waiting outside the house. Directing them to the cellar, she
told them: "She's downstairs in the cellar covered with blood. I think they had a
fight." Officer Wargin ran downstairs and discovered the battered woman, with
the appellant kneeling beside her, and a bloodied steam iron and bag lying
nearby. Appellant asked the officer to help Joan, but examination showed that
she was lifeless.

Officer Wargin then asked the appellant to accompany him to an adjoining

laundry room in order to remove him from the immediate vicinity of the body.
The room was small, not well lit, and, like the temperature outside, quite warm.
Appellant, naked from the waist up and with blood on his upper torso and
hands, was asked to sit down. Officer Wargin then proceeded to ask him who
he was, what his relationship was to Joan and what had happened to her.
Finding the appellant upset, the officer halted the questioning and suggested
that he wash his hands and face and calm down. Appellant did so and then
answered the questions, explaining that he and Joan, who were planning to be
married, had had an argument about adopting children, that they had cursed
each other and Joan had left. He then told the officer that after finishing a cup
of tea, he set out to look for her, eventually discovering her in a crouched
position at the foot of the cellar steps and moving her to the reclining position
in which she now lay.

This period of questioning lasted approximately ten minutes. It was interrupted

by the arrival of Lieutenant Duffy and several other officers. Duffy examined
the body and the iron, discovered that a sink upstairs had blood in it and found
a broken thermos bottle lying in the hallway leading to the cellar steps. He then
entered the laundry room, and promptly gave appellant Miranda warnings, to
which appellant replied that he would tell Duffy anything he wanted to know.
With the occasional participation of another officer, Duffy then questioned
appellant for approximately an hour. The appellant essentially recounted what
he had told Officer Wargin, but altered his description of events by stating that
after he and Joan had had the fight, he had taken a walk in Newtonville for ten
or fifteen minutes. In addition, he asked the officer whether he thought he was
responsible for Joan's death and made several comments that he was "in a lot of
trouble". At the conclusion of this interrogation, he was given a card which
once again advised him of his rights. He signed the card, was arrested and
taken to the station house. Appellant finds fault with these police procedures in
two respects.

Officer Wargin's ten minute questioning

5

Appellant's first contention is that Officer Wargin's failure to inform him of his
Miranda rights before questioning him for ten minutes in the laundry room
rendered any statements made to that officer inadmissible at trial. In particular,
he claims prejudice from the fact that the prosecutor drew the jury's attention to
the discrepancies between his responses to Wargin and Duffy.1 We therefore
must determine whether Wargin's questioning constituted custodial
interrogation, that is, "questioning initiated by law enforcement officers after a
person has been taken into custody or deprived of his freedom of action in any
significant way", Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612,
in which case Miranda warnings should have preceded the inquiry, or
constituted "general on-the-scene questioning as to facts surrounding a crime",
making recital of the warnings unnecessary. Id. at 477-78, 86 S.Ct. at 1629.
Drawing the line between custodial interrogation and general on-the-scene
questioning has often proved a difficult task, See, e. g., United States v. Hall,
421 F.2d 540, 543-44 (2d Cir. 1969), Cert. denied, 397 U.S. 990, 90 S.Ct. 1123,
25 L.Ed.2d 398 (1970), Aff'd on rehearing en banc, 459 F.2d 454, 455 (2d Cir.
1972). Recently, however, the Supreme Court, in Oregon v. Mathiason, 429
U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam), has
provided some guidance in this area:

6
"Any
interview of one suspected of a crime by a police officer will have coercive
aspects to it, simply by virtue of the fact that the police officer is part of a law
enforcement system which may ultimately cause the suspect to be charged with a
crime. But police officers are not required to administer Miranda warnings to
everyone whom they question. Nor is the requirement of warnings to be imposed
simply because the questioning takes place in the station house, or because the
questioned person is one whom the police suspect. Miranda warnings are required
only when there has been such a restriction on a person's freedom as to render him
'in custody.' It was That sort of coercive environment to which Miranda by its terms
was made applicable, and to which it is limited." (Emphasis in original.)
7

And, as this circuit has recognized, the applicability of Miranda must be

determined by an objective rather than a subjective test, "requir(ing) at least
some objective manifestation that the defendant was 'deprived of his freedom
of action in (a) significant way', " Fisher v. Scafati, 439 F.2d 307, 310 (1st Cir.
1971); See Freije v. United States, 408 F.2d 100, 103 (1st Cir.), Cert. denied,
396 U.S. 859, 90 S.Ct. 137, 24 L.Ed.2d 111 (1969).

Appellant points to a number of circumstances which, he contends, show that

Officer Wargin compelled him to remain in the laundry room and to respond to

his inquiries, depriving him of the freedom to depart and thus placing him "in
custody". He notes the violent death, his presence on the scene, the officer's
knowledge that "they" had had a fight, the movement of appellant, bloodstained and quite nervous, into a small adjoining room for questioning and
concludes that no reasonable person could consider himself free to leave when
"subjected to (this) significant restraint in a coercive environment." Finally,
appellant maintains that Officer Wargin's inquiries cannot be considered
"general on-the-scene questioning" because they lasted for a ten minute period.
9

Our scrutiny of the facts as depicted by the parties and as revealed in the
transcript of the comprehensive pretrial suppression hearing, as well as case
law involving like situations, convinces us that the district court properly
concluded that: "(Officer Wargin's) questions to petitioner were general, routine
and necessary to preliminary investigation", and that appellant was not "in
custody" when the questions were asked.2 Responding to a call over his radio
that a person was bleeding, Officer Wargin arrived at the scene, and, equipped
with no other information than Judith's exclamation that "they" had had a fight,
found appellant kneeling beside a woman's body, supporting her head in his
hands, and repeatedly asking the officer to help her. Appellant's attempts to
paint himself as the prime suspect in the slaying from the moment the officer
saw him and thus unable to leave had he attempted to do so are unpersuasive.
The officer had no basis on which to conclude that appellant, completely
unknown to him, was the person, unidentified by Judith, who had had a fight
with the woman. And although the officer quickly determined that Joan had
met a violent death, he had no reason at that time to believe that appellant was
responsible. Indeed, appellant's apparent distress and calls for help may have
indicated the contrary to the officer. The presence of blood stains on his hands
and torso were not necessarily suspicious, as the officer had found him holding
the woman and was later told by appellant that he had moved the body. The
questions which ensued were those of an officer called to the scene of a crime
about which he knew nothing and attempting to find out what had happened.
No one, including the appellant, stood accused of the slaying.3 Moreover, the
locus was not a police station, nor even a neutral location, but a house to which
he came as a familiar.

10

United States v. Barnes, 150 U.S.App.D.C. 319, 464 F.2d 828 (1972), involved
a situation similar to this one. As here, an officer was summoned to a residence
when a radio call indicated trouble. Upon his arrival, he was met outside by a
woman who told him that the defendant had set fire to the victim. The officer
then asked the defendant whether that was true, the response was affirmative,
and the defendant was arrested. The court held that Miranda warnings were not
required before the questions took place, explaining:

11 must be borne in mind that Officer Layfield knew nothing of what had happened
"It
in the Blizzard apartment. He was seeking to find out. It was Mrs. Blizzard, not
Sergeant Layfield, who precipitated the investigatory question. At this point no one
had been accused of any crime." Id. 150 U.S.App.D.C. at 320, 464 F.2d at 829.
12

The fact that Officer Wargin asked the appellant to move into the laundry room
and questioned him there do not suffice, as appellant contends, to transform this
questioning into a custodial interrogation. When asked at the suppression
hearing why he had moved the appellant into the laundry room, he responded:
"My main purpose was to take him away from the body because I didn't know
whether he was a brother or a relative. And no sense in looking at the body. So
I took him in the laundry room to try to calm him down." The officer's
treatment of appellant in the laundry room was consistent with this expressed
motive. He attempted to calm him, knelt beside him and suggested that he wash
his face and hands. At no time was the door closed or the appellant physically
restrained or psychologically pressured. See Iverson v. State of North Dakota,
480 F.2d 414, 425 (8th Cir. 1973). There was nothing "said or done by the
(officer), either in (his) manner of approach or in the tone or extent of (his)
questioning, which indicates that (he) would not have heeded a request to
depart or to allow the suspect to do so." United States v. Hall, supra, 421 F.2d
at 545.

13

We also cannot agree with appellant's suggestions that the ten minute
questioning was too long to constitute general on-the-scene questioning and
that that category is restricted to a rapid interchange of several moments'
duration. This quantitative approach ignores the fundamental inquiry mandated
by Miranda whether the person is placed in a coercive environment which
restricts his freedom so as "to render him 'in custody' ", Oregon v. Mathiason,
supra, 429 U.S. at 495, 97 S.Ct. 711, a scenario which can develop in a matter
of moments, See Orozco v. Texas, 394 U.S. 324, 325, 89 S.Ct. 1095, 22
L.Ed.2d 311 (1969), or not materialize over a three hour period of questioning,
See Beckwith v. United States, 425 U.S. 341, 342-43, 96 S.Ct. 1612, 48
L.Ed.2d 1 (1976).

14

Furthermore, other courts have characterized interrogations of longer than ten

minutes as general investigative questioning, which, like on-the-scene
questioning, need not be preceded by Miranda warnings, See Miranda v.
Arizona, supra, 384 U.S. at 477-78, 86 S.Ct. 1602. The facts in United States v.
Hall, supra, 421 F.2d 540, bear similarity to the case at hand. Officers arrived
at defendant's apartment to investigate a robbery, telling him of their suspicions
that he was the perpetrator and seeking to question him. He agreed and was
questioned for seventeen minutes, during which time false exculpatory

statements were elicited. Later in the day, his Miranda rights were read to him
for the first time. He waived them and related a story which in some respects
conflicted with his earlier statements. Recognizing that the existence of even
considerable suspicion surrounding the defendant was not controlling, the court
found no objective indication that the officers had put him in custody or
otherwise deprived him of his freedom. Similarly, in Iverson v. State of North
Dakota, supra, 480 F.2d 414, defendant was subpoenaed to the police station to
answer questions about the murder of two young women who lived in his
apartment building. He was questioned about his whereabouts at the relevant
time, his relationship to the victims, and his awareness of others who might
have known them, and permitted to leave. The court, concluding that he was
not in custody, emphasized that the investigation had barely begun, that it was
still wide ranging, that he had neither been restrained nor arrested and that "
(h)is total interrogation lasted Only twenty minutes." Id. at 423 (emphasis
added). See United States v. Tobin, 429 F.2d 1261, 1264 (8th Cir. 1970) ("the
defendant was subjected to only about 20 minutes of questioning immediately
following the time he arrived at the station").4
15

We conclude that the ten minute interrogation conducted by Officer Wargin

constituted general on-the-scene questioning rather than a custodial
interrogation. Accordingly, Miranda warnings need not have preceded the
inquiry, and the statements elicited were properly admitted at trial.

Appellant's subsequent waiver of his Miranda rights

16
17

Appellant's second contention is that his response, after he was informed of his
Miranda rights by Lieutenant Duffy, that: "I will tell you anything you want to
know", cannot be considered a voluntary waiver, rendering his subsequent
statements inadmissible.5 He maintains that "the circumstances surrounding
Duffy's interrogation were so emotionally charged that one must conclude that
it was psychological coercion and not free will that led (him) to forego the
exercise of his constitutional rights."

18

The government bears a heavy burden when it attempts to show that a person in
custody both understands and voluntarily waives the exercise of his
constitutional rights, See Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct.
1602; United States v. Christian, 571 F.2d 64, 68 (1st Cir. 1978); United States
v. Goldman, 563 F.2d 501, 503 (1st Cir. 1977), but we believe that it has met its
burden here. Appellant's characterization of the laundry room interrogation as a
coercive environment in which his will was not his own is unpersuasive on the
facts as he presents them and is amply contradicted by testimony elicited at the
suppression hearing. This was hardly a case in which "the behavior of law

enforcement officials was such as to overbear petitioner's will to resist and

bring about confessions not freely determined". Beckwith v. United States, 425
U.S. 341, 347-48, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976), Quoting Rogers v.
Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961).
19

Although several officers moved in and out of the laundry room while the
interrogation took place, appellant was questioned by Lieutenant Duffy alone
with a brief follow-up by Officer Cox alone. The officers treated him with
courtesy and restraint, applying no pressure whatsoever. The appellant, 23
years old, the recipient of a high school equivalency certificate for studies
pursued while serving in the Coast Guard, and a subsequent student of
computer programming, expressed an understanding of his rights and stated his
willingness to tell them whatever they wanted to know. And while Officer
Wargin considered the appellant upset and very nervous when he questioned
him for the previous ten minutes, the other officers, who questioned him after
he waived his rights, described him as calm, able to understand the questions
and coherent in his responses. The appellant was asked to explain what had
happened in narrative form and was not badgered with a long or repetitive series
of questions. His explanation was relayed in a conversational tone of voice.
Consequently, we are convinced that the appellant understood his rights and
voluntarily waived them.

2. The prosecutor's closing argument to the jury

20
21

Appellant also argues that the prosecutor's closing argument, in which

comments allegedly were made about his failure to take the stand and testify on
his own behalf in violation of the Fifth Amendment, deprived him of a fair trial.
See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
The prosecutor indeed was strolling in a minefield, and were we reviewing his
conduct as an exercise of our supervisory powers on appeal from a federal
district court, we might more readily be inclined to reverse the conviction. See,
e. g., United States v. Flannery, 451 F.2d 880 (1st Cir. 1971). However, the
scope of our review of a state court proceeding is "the narrow one of due
process", and "not every trial error or infirmity which might call for application
of supervisory powers correspondingly constitutes a 'failure to observe that
fundamental fairness essential to the very concept of justice.' " Donnelly v.
DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).
In the wake of Donnelly v. DeChristoforo, this court has said that it will
determine whether a state prosecutor has infringed an accused's Fifth
Amendment right to remain silent by looking to:"(w)hether the language used
was manifestly intended or was of such a character that the jury would naturally
and necessarily take it to be a comment on the failure of the accused to testify."

Lussier v. Gunter, 552 F.2d 385, 389 (1st Cir.), Cert. denied, 434 U.S. 854, 98
S.Ct. 171, 54 L.Ed.2d 124 (1977), Quoting Knowles v. United States, 224 F.2d
168, 170 (10th Cir. 1955).
22

Applying that standard to the case at hand, we do not find that the impropriety
of the prosecutor's remarks rose to the level of a constitutional deprivation.

23

We will address each of the prosecutor's remarks to which defendant objects.

First, the prosecutor noted that the victim "did not have an enemy in the world.
If she did, you would have heard about it, that is for sure." The comment, we
believe, did not "naturally and necessarily" draw the jury's attention to the
defendant's silence. This is not a case in which the defendant was the only party
who could have testified about the evidence in question. Compare Lussier v.
Gunter, supra, 552 F.2d at 389 And United States v. Kubitsky, 469 F.2d 1253,
1255 (1st Cir. 1972) With Desmond v. United States, 345 F.2d 225, 227 (1st
Cir. 1965). Evidence of "enemies" of the victim could have been developed by
witnesses other than the defendant or brought out by defense counsel when
cross-examining the victim's relatives. Moreover, defense counsel promptly
objected to the remark, and the court immediately responded: "No. The defense
does not have to produce any witnesses. The jury will disregard that remark."

24

Second, the defendant points to portions of this recital by the prosecutor:

25
"Now,
you have to unfortunately, ladies and gentlemen of the jury, part of your job
is you have to try to put yourself at the scene and try to think of what it was like.
You just see him sitting there. Is that consistent with his story. I mean it is
absolutely, it is absurd. He knows, he knows ladies and gentlemen of the jury, that
he is guilty. He knows it. He is sitting there
(objection made and overruled)
26
27 this time, ladies and gentlemen of the jury, he knows as he sits there, you know
"At
from the evidence that you have heard, ladies and gentlemen of the jury, that he
knew, he knew what had happened to that girl."
28

This display of rhetoric, which added little to the force of the prosecutor's
argument and was subject to possible misinterpretation by the jury,
demonstrates remarkably poor judgment on the part of the prosecutor. We
cannot find, however, that these remarks were intended to or would "naturally
and necessarily" be understood by the jury as a comment on the defendant's
failure to take the stand at trial. They appear in the context of the prosecutor's
attempts to recreate the scene of the crime, as the defendant sat in the laundry

room and was questioned by Lieutenant Duffy and Officer Cox. The court so
understood the comments, as it later told defense counsel, who had moved for a
mistrial, at the bench, and counsel concurred in that interpretation. And while
defendant had the right to remain silent during that custodial interrogation as
well as at trial, he made a knowing waiver of that right and proceeded to tell his
story to the officers. See United States v. Mann, 590 F.2d 361 at 371 (1st Cir.
1978).
29

Third, the prosecutor concluded his argument as follows:

30shall respectfully submit to you, ladies and gentlemen of the jury, that this man,
"I
Michael Borodine, who you saw through the course of the trial just sit there. He's as
calm as he can be, he never had a shred of remorse from the beginning right up until
now."
31

These comments, when considered as a whole, were probably intended and

understood as a reflection on the defendant's expressionless courtroom
demeanor rather than on his right not to take the stand. Thus, although they
were improper in the sense of being irrelevant (a defendant's "courtroom
behavior off the stand is (not) in any sense legally relevant to the question of
his guilt or innocence of the crime charged", United States v. Wright, 160
U.S.App.D.C. 57, 62, 489 F.2d 1181, 1186 (1973)),6 they "raise no habeas
corpus issue" that can be grounds for reversal of a state court conviction.
Bishop v. Wainwright, 511 F.2d 664, 668 & n. 5 (5th Cir. 1975), Cert. denied,
425 U.S. 980, 96 S.Ct. 2186, 48 L.Ed.2d 806 (1976).7

32

Moreover, even if the jury had taken the portion of the comment that they had
seen the defendant "through the course of the trial just sit there" as an allusion
to his decision not to take the stand, the court gave a strong curative instruction
in its charge to the jury,8 which we believe adequately obviated the prejudice
which may have been occasioned by the prosecutor's improper remarks:

33
"Further,
no unfavorable inference can be drawn against the defendant from the fact
that he did not take the stand. The defendant has an absolute right, under our
constitution, not to testify. If he does not do so no one may even speculate or even
inquire as to the reasons that may have led to that result.
34
"Further,
the defendant has no obligation to express to anyone his feelings about this
incident. Any statements and final argument by the district attorney with regard to
any allegation of his lack of remorse may be disregarded and should be disregarded
and must be disregarded as immaterial and inappropriate."

35

In addition, the defendant objects to a comment which he alleges deprived him

of his general due process right to a fair trial, rather than specifically infringing
his Fifth Amendment right to remain silent.9 Early in his argument, the
prosecutor stated that:"Several witnesses, if they were permitted, Lieutenant
Duffy and Doctor Bigelow and so on and so forth, or if they were talking to you
in the lobby, would tell you that as a matter of fact he smashed her over the
head with the point of the iron, but they can't say that to you "

36

Defense counsel immediately objected, and the court chastised the prosecutor:
"The jury is not going to speculate as to what a witness might have said. The
jury is only concerned with what the witness said." The prosecutor apologized
and continued his argument.

37

The Supreme Judicial Court considered the remark, albeit improper, to be

merely "an artless choice of words employed by the prosecutor in an attempt to
explain that the jury had to draw the ultimate conclusion from the specific
facts", 353 N.E.2d at 655, and the district court employed like reasoning. We
do not believe that this characterization, even if accurate, minimizes the
prejudice of the remark. The prosecutor knew quite well that Lieutenant Duffy
and Doctor Bigelow, who were not eyewitnesses to the murder, could not
testify that it was their opinion that defendant had struck the fatal blow, and his
apparent attempt to circumvent that inconvenience by in effect so testifying for
them is indefensible. However, we find that the court's swift instruction to the
jury, forceful enough to prompt an apology by the prosecutor, was an adequate
antidote to the prejudice occasioned by the remark. Consequently, we cannot
say that the comment "by itself so infected the trial with unfairness as to make
the resulting conviction a denial of due process." Donnelly v. DeChristoforo,
supra, 416 U.S. at 643, 94 S.Ct. at 1871.

38

We hold, therefore, that the prosecutor's closing argument, considered as a

whole, did not deprive the defendant of his right to a fair trial. We emphasize,
however, as did the Supreme Judicial Court, that our conclusion that reversal is
not warranted as a matter of constitutional law does not by any means lessen
our disapproval of the prosecutor's use of the type of rhetoric we have
considered here.

39

The judgment of the district court is affirmed.

Each version was improbable. The first asked the jury to believe a murder of
considerable violence was occurring in the quiet house near appellant, who

remained oblivious. The second required the assumption that during appellant's
ten or fifteen minute absence from the house an interloper, with perfect
prescience, entered, did the deed, and left. It may be argued that the presence of
two unlikely versions as opposed to one added little of prejudice. But we shall
assume some significant increment in prejudice
As the district court properly noted, a defendant need not have admitted his
guilt to an officer in order to claim that Miranda warnings should have been
administered to him. As the Miranda Court stated:
"(N)o distinction may be drawn between inculpatory statements and statements
alleged to be merely 'exculpatory'. If a statement made were in fact truly
exculpatory it would, of course, never be used by the prosecution. In fact,
statements merely intended to be exculpatory by the defendant are often used to
impeach his testimony at trial or to demonstrate untruths in the statement given
under interrogation and thus to prove guilt by implication. These statements are
incriminating in any meaningful sense of the word and may not be used without
the full warnings and effective waiver required for any other statement."
Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694
(1966).
2

Appellant's suggestions that the district court applied an incorrect legal standard
in determining whether or not he was "in custody" are unfounded. The court
properly stated that neither subjective intent of the officer and defendant nor
whether the authorities have focused on the defendant are the relevant
considerations and turned to an analysis of whether the defendant had been
deprived of his freedom in a significant way

We are mindful of Judge Friendly's warning that "(i)t is altogether too easy to
fall into the error of allowing the first (brief period of questioning) to be
significantly colored by what developed later". United States v. Hall, 421 F.2d
540, 545 (2d Cir. 1969), Cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d
398 (1970), Aff'd on rehearing en banc, 459 F.2d 454 (2d Cir. 1972). The fact
that it became increasingly likely that appellant had played a role in the slaying,
resulting in a later interrogation preceded by Miranda warnings during which
he undoubtedly would not have been permitted to leave and in his subsequent
arrest does not convince us that appellant had been deprived of his freedom in a
significant way during the initial period of questioning

Appellant's reliance on two opinions by the District of Columbia Circuit is

misplaced. He contends that although that court originally concluded that a
confrontation between the defendant and an officer on the street was general
on-the-scene questioning, See Allen v. United States, 129 U.S.App.D.C. 61, 64,

390 F.2d 476, 479 (1968), it altered its holding and found custodial
interrogation when further development of the facts showed that the
questioning had lasted for ten minutes, See Allen v. United States, 131
U.S.App.D.C. 358, 404 F.2d 1335 (1968) (motion to modify opinion denied).
The appellant fails to note that the fact situation was found to be altered in a
number of significant respects, one of which was that "appellant confessed
'approximately ten minutes' After he had been arrested." Id. 131 U.S.App.D.C.
at 359, 404 F.2d at 1336 (emphasis added). The case therefore does not stand
for the proposition that ten minutes is too long a period to constitute general onthe-scene questioning
5

Because we have rejected appellant's claim that Officer Wargin's questioning

was custodial interrogation, we need not reach an additional argument that:
"since the initial questioning by Wargin constituted 'custodial interrogation' and
was not preceded by Miranda warnings, Duffy's interrogation qualifies as 'fruit
of the poisonous tree' requiring exclusion of the Petitioner's statements to
Duffy."

In United States v. Wright, 160 U.S.App.D.C. 57, 489 F.2d 1181 (1973), the
court, in an exercise of its supervisory powers over federal trials, found the
prosecutor's comment, with the court's approval, on the defendant's unruly
courtroom behavior to be one of numerous grounds for reversal. The court
particularly noted that the jury should have been instructed to disregard the
defendant's behavior. Id., 160 U.S.App.D.C. at 62, 489 F.2d at 1186. That case
is of course readily distinguishable from the one at bar. The instant case is
before us in a habeas corpus proceeding rather than on direct review from a
federal district court and a curative instruction, absent in Wright, was given by
the Massachusetts court

The prosecutor's comment in Bishop was similar to the remarks made in this
case:
"Look at his attitude during the week. Have you seen one little ounce of
remorse on his face, one outburst, one apparent showing of concern? He's sat
there like a knot on a log through the whole trial. He didn't talk to his lawyer,
hasn't said anything. He just sits there. He doesn't do anything. Absolute
nothing." Bishop v. Wainwright, 511 F.2d 664, 668 n. 5 (5th Cir. 1975), Cert.
denied, 425 U.S. 980, 96 S.Ct. 2186, 48 L.Ed.2d 806 (1976).

Defendant did not object to this remark when it was made, at the end of the
prosecutor's argument, and a Sua sponte instruction was not given by the court.
However, the defense counsel immediately moved for a mistrial at the close of
the argument, citing the comment that defendant had shown no remorse as one

of his grounds, and the court, while denying the motion, in its charge to the
jury dealt with the improper remarks in a manner which we consider
sufficiently immediate and forceful. See Lussier v. Gunter, 552 F.2d 385, 389
& n. 2 (1st Cir. 1977)
9

The government argues that in Donnelly v. DeChristoforo, 416 U.S. 637, 643,
94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974), the Court held that the defendant
must show that the prosecutor's comment infringed on a specific right
guaranteed by the Bill of Rights, such as the privilege against selfincrimination. We disagree. Although the Court distinguished between such a
case and a claim "only that a prosecutor's remark about respondent's
expectations at trial (that he would be convicted of a lesser offense than firstdegree murder) by itself so infected the trial with unfairness as to make the
resulting conviction a denial of due process", it did not state that the latter more
general claim could never be made but that it did "not believe that examination
of the entire proceedings in this case supports (the defendant's) contention." Id.
The Court did suggest, however, that a defendant faces a more difficult task in
making the general due process claim. Id
Furthermore, it is not so clear in the case at bar that the prosecutor's reference
to what certain witnesses would tell the jury in the lobby, if they could, did not
infringe on a "specific right guaranteed by the Bill of Rights", Id., namely, the
right of confrontation and cross-examination. See Pointer v. Texas, 380 U.S.
400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). As the Court in Turner
v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965),
stated:
"In the constitutional sense, trial by jury in a criminal case necessarily implies
at the very least that the 'evidence developed' against a defendant shall come
From the witness stand in a public courtroom where there is full judicial
protection of the defendant's right of confrontation, of cross-examination, and
of counsel." (Emphasis added.)